Court File and Parties
Court File No.: 12-0647 Date: 2016-07-26 Ontario Superior Court of Justice
Between: Kamal Osman and Mohamad Ossman, Applicants And: Kelly Anne Heath and Robert K. Toole, Respondents
Counsel: Stefan Cyr, for the Applicants Craig M. Bater and Emily G. Villeneuve, for the Respondents
Heard: March 22 and 23, 2016 Written Submissions received: April 22, May 11 and May 20, 2016.
Reasons for Judgment
C. MCKINNON J.
[1] The issue to be resolved in this Application is whether the rear portion of a large shed which straddles a property line has been acquired through adverse possession by the Respondents and their predecessors in title.
The Facts
[2] The Applicants Kamal Osman and Mohamad Ossman are the owners of a property known as 215-217 and 221 Prescott Street, Kemptville, Ontario (the “Commercial Property”). The Respondents, Kelly Anne Heath and Robert Kevin Toole are the current owners and occupants of 212 Thomas Street, Kemptville, Ontario (the “Residential Property”).
[3] The Applicants and Respondents share a boundary line at the rear of the two properties. Both claim ownership of the rear portion of a large shed which straddles the property line, which is registered as Part 1 on Plan 15-R10725.
[4] The Applicants acquired title to the Commercial Property pursuant to a deed registered on April 16, 2004. The Applicants first acquired an interest in the Commercial Property in 1999 when they began leasing a portion of the property from the then owner, Douglas Arthur DePencier, for use as a Pizzeria. The property was sold to the Applicants by Douglas Arthur DePencier, who acquired the property from the estate of his father, Arthur Howard DePencier.
[5] Until about 1995, Douglas DePencier operated a building supply business from the Commercial Property. In 1995, he moved his business to a different location in Kemptville, Ontario.
[6] On October 30th, 2007, Douglas DePencier signed a statutory declaration of possession setting out the history of the Commercial Property. The declaration states that Arthur Howard DePencier sold the Residential Property, known municipally as 212 Thomas Street, shown as Parts 4, 5, and 6 on Plan 15-R10725. The declaration states that the large shed was bisected by an interior wall that ran along the property line between the properties. Douglas DePencier declares that Part 1 on Plan 15-R10725, which represents the rear one half of the shed on the Commercial Property, was always owned and occupied by the owner of the Commercial Property during the time of ownership of himself and his father.
[7] The admissibility of the statutory declaration of possession is highly in dispute. Douglas DePencier passed away following the making of the declaration. The declaration had been sworn before a lawyer. I held that the threshold test for admissibility had been met, considering the twin requirements of necessity and reliability: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Nonetheless, Mr. DePencier was never cross-examined upon his declaration and the declaration contradicts other evidence in the case, as will become apparent in the course of these reasons.
[8] With respect to the Residential Property, by deed dated August 29, 1995, George Chiappa and Lynn Sutherland conveyed the Residential Property to Donald Doucette and Elizabeth Doucette (“the Doucettes”) as joint tenants. The metes and bounds description in the deed does not include the rear portion of the large shed now indicated as Part 1 on Plan 15-R10725. Ms. Doucette was aware when she purchased the Residential Property that the property line went through the middle of the large shed. In a reporting letter from her lawyer dated August 31, 1995, Ms. Doucette was informed that there was an issue with a portion of the shed and that she did not have paper title to Part 1 on Plan 15-R10725. Specifically she was told the following:
As we discussed prior to closing, upon reviewing the building location survey, it was obvious that the frame shed at the rear of the lot clearly straddled the property line separating your property and the property behind yours. You are aware of this from your personal inspection of the lands and were prepared to accept the situation as it existed with the inherent risk arising from same. I have however been able to obtain declarations of possession for more than 10 years back which purport to indicate that the said shed has been possessed by your predecessors in title for more than 10 years. This possessory title does not give you paper title to the shed or the land that it sits upon which are not part of your legal description, but does provide you with a defence to any action to have the building moved or to dispossess you of same.
[9] It is clear Ms. Doucette was satisfied, based upon the declarations of possession, that she owned the large shed through adverse possession exceeding 10 years.
[10] After acquiring the property, the Doucettes renovated the large shed, including boarding over all possible entrances or access points to the large shed from the Commercial Property to either the ground floor or the second floor. The large shed was in a highly deteriorated state. A cement floor was poured. Photographs were taken by Ms. Doucette, which show a run-down and derelict building prior to the renovations being carried out.
[11] The building has been vastly enhanced as a result of improvements made by both the Doucettes and the Respondents. Ms. Doucette testified that she and her husband spent about $16,000 on renovations, including $2,500 for jacking up the building, $1,200 for electrical work, $4,000 for an extension to the shed, and $3,500 for the preparation work for the new cement floor. She had incomplete receipts, but it must be noted that the renovations had been carried out more than 20 years prior to trial.
[12] The Respondent Robert Toole testified that he made further improvements to the large shed, including rebuilding the interior staircase to the second floor to bring it into compliance with the Building Code, installing shelves, a tool bench and lighting, as well as re-bracing some of the beams on the second floor. He also repaired the roof and built additional walls to strengthen the load bearing supports. He rented an excavator and installed drainage around the base of the shed. The Respondents insured this building for $52,000 in 2006 and increased it to $74,300 in 2014.
[13] Photographs filed show renovations being conducted by the Doucettes on the exterior of the building in plain sight, using supplies purchased at the building supply company owned by Douglas DePencier. Observing the photographs of the renovation, one can apply the words “open and notorious” to the work being carried out.
[14] I am satisfied, after hearing the evidence of Lynn Sutherland, who acquired the Residential Property in 1990 and sold it to the Doucettes in 1995, that during the time of her occupation, the large shed was decrepit. The building was very old and her partner, Mr. Chiappa, parked his sports car inside the shed. There were some horse stalls in the building. Important to note, there was no wall separating the front half of the large shed from the rear half of the large shed, as alleged by the Applicants. Ms. Sutherland recalled that there was some insulation in packages on the upper floor. She never saw any use being made of the shed by Mr. DePencier. She understood that these bags of insulation on the second floor had been left by her predecessor in title of the Residential Property.
[15] Ms. Sutherland testified that the shed was never a legal issue when she purchased the Residential Property and that at all times it was used to park her partner’s car and to store gardening tools. Photographs confirm this evidence. The photographs also confirm that there was no wall separating the front portion from the back portion of the shed. Were there such a wall, the car could not have been parked inside the shed.
[16] Ms. Sutherland agreed that the large shed straddled the property line and that in her declaration of possession no mention was made of it. She testified that there was simply no discussion about the ownership of the large shed. She assumed that it came with the house she had purchased.
[17] Jeff Doucette (no relation to the Doucettes who were predecessors in title to the Respondents), is a young man who had done some work on the large shed on behalf of the Doucettes. He recollected that he was about 15 years old at the time he did the work. He was approximately 21 years of age at the time of trial. He agreed that the photographs taken by Ms. Sutherland fairly represented the state of the large shed when he worked on the property. He assisted in removing some debris, including gravel and pieces of cement, from the large shed. He recollected that a Datsun was parked in the shed and that there was no dividing wall within the shed. When shown photographs taken by Ms. Sutherland of the Datsun in the shed, he identified the photographs as being representative of his memory of the state of the interior of the shed.
[18] When the Doucettes acquired the property, the automobile was still in the shed. They phoned Ms. Sutherland’s partner, Mr. Chiappa, and he told them that they could keep the car. They did, and subsequently sold it. Ms. Doucette, who goes by the name “Twolan”, her maiden name, confirmed that there was never a dividing wall in the shed and that she and her husband proceeded to completely renovate the large shed. At no time was there any objection made to these renovations by Douglas DePencier.
[19] Ms. Twolan and her husband did approach Mr. DePencier to advise they would be renovating the large shed and removing the back door on the Commercial side and asked permission to enter his land in order to carry out the work, which was granted. She also spoke to him about purchasing the additional land from him to enlarge their own backyard and his response was “Not at this time”. He also commented “That old barn is not worth fixing”. He never asserted any ownership over the building. She told him that his own warehouse encroached on her property and he stated that “It was good trade-off”. This evidence was hearsay, although no objection was taken to it being referred to at trial. Nonetheless, I place no weight on this evidence.
[20] The evidence establishes that Kamal Osman was highly insistent upon receiving a declaration of possession from Douglas DePencier. His evidence was that he asked Mr. DePencier for the declaration “many times; so many times; probably for more than five; he yells whenever I ask him”. In his evidence at trial, Mr. Osman denied that he yelled at Mr. DePencier. In any event, a declaration of possession was obtained, as referenced earlier. The declaration states that:
When my father sold the property at 212 Thomas Street, the boundary shared with the lands retained on Prescott Street bisected a large frame shed on Lot 8. A wall was constructed in the ground floor of the shed in approximately the location shown by Plans 15R-10442 and 15R-10725 as the shared boundary. The owners of each property enjoyed exclusive use of that part of the shed located on their side of the partition wall. This use was continuous and undisputed during my, and my late father’s tenure as to that area now shown as Part 1, on Plan 15R-10725.
The second floor of the shed was not partitioned and my father’s use of the entire second floor was also undisputed.
The surveys also show that a large metal clad shed along the north limit of the subject lands encroaches approximately 1.3 feet onto the lands described in the conveyance of 212 Thomas Street, by my late father. This encroachment is shown as Part 3 on Plan 15R-10725. I can affirm that the shed had remained in its present location for over 40 years.
[21] As noted previously, the declaration was sworn before a lawyer.
[22] The 2007 declaration contradicts Douglas DePencier’s 2004 declaration when he sold the property and swore that he or his tenants had been “in continuous, exclusive, undisturbed possession and occupation of the buildings used in connection with the property throughout my period of ownership, that the buildings used in connection with the [Applicants’] premises are wholly situated within the limits of the lands” and that he was “unaware of any person having any claim or interest adverse or inconsistent with the registered title”.
[23] In the admitted facts in this case, it is stated that “Douglas DePencier was aware of and made no objection to the Doucettes’ renovations to the building” during 1995 to 1997. At that time, the Doucettes exclusively possessed both floors of the entire building.
[24] In addition, paragraph 4 of the 2007 declaration of Douglas DePencier stated that after relocating his business in 1995 he continued to make active use of the entire property until he sold it in 2004. The entire property includes the pizza store, the design store, and the metal storage sheds. This statement is contradicted by Kamal Osman and one of his witnesses, John Smith, who both stated that the Applicants rented and operated the pizza restaurant from and after 1995, and that all of the metal sheds and warehouses were rented out to a third party from and after 1995, specifically for nine years before Mr. DePencier sold the property in 2004.
[25] Respecting the portion of Mr. DePencier’s 2004 declaration stating that he had continuous and exclusive use of the entire rear one half of the shed during the entirety of his tenure until 2004, this cannot be the fact. It is contradicted both by the evidence of Ms. Sutherland, which I accept, whose partner parked his car in the shed from 1990 to 1995, and by the agreed statement of fact that “Douglas DePencier was aware of and made no objection to the Doucettes’ renovations to the building”. It is also contradicted by the evidence of Jeff Doucette.
[26] It is known that during the renovation the Doucettes removed all interior walls and thereafter used and exclusively possessed both floors of the entire building. It is clear from all the evidence that the allegation and declaration that there was a wall separating the front half of the shed from the rear half of the shed cannot be correct. From the year 1990, when Ms. Sutherland and M. Chiappa took possession of the property, it is clear that there was no partition wall dividing the shed. Given the evidence on this point, I find the facts set out in the declaration of possession made on October 30, 2007, to be untrue.
[27] In the declaration of possession made by Donald and Elizabeth Doucette on September 7, 2006 in consideration of the sale to the Respondents, they state:
We have carefully examined reference Plan 15R-10725 and confirm that Parts 1, 4, 5 and 6, shown on Plan 15R-10725 accurately depict the lands which we have openly, continuously and exclusively occupied and possessed by us since August 29 th, 1995. The building was constructed at least 40 years ago, and occupies the same land as when constructed. We and our predecessors on title have openly, continuously and exclusively occupied and possessed the building since its construction. At no time did the neighbours to the south or their predecessors on title occupy the whole, or any part thereof.
[28] They also deposed that: “We have no knowledge of any claim or interest of any person or corporation in the lands which is adverse to or inconsistent with our unencumbered title and we are positive that none exists.”
[29] Part 1 of the Plan is the rear portion of the large shed, the land in dispute.
[30] The Applicants called two witnesses to establish the use made of the large shed and that an interior wall existed. Both are friends of the Applicants. In particular, John Smith is a close friend of Kamal Osman and ate at his restaurant on a regular basis.
[31] John Smith testified that insulation was stored on the second floor of the shed and that a wall divided the front and the back. He believed that the last time he accessed the property was in 1995, before the business moved to Kemptville. He was an employee of Mr. DePencier’s business.
[32] Carl Patterson worked for Mr. DePencier from 1980 until 1988 and recollects that the shed was used to store insulation in the upper portion and that a ladder was required to gain access to the shed from the Commercial Property. He recollects seeing a wall dividing the shed. He did not recall ever entering the shed.
[33] Their evidence clearly contradicts the evidence of Lynn Sutherland and Jeff Doucette, which I prefer. Both testified that there was no dividing wall between the front and the rear half of the large shed.
[34] It may be that a wall existed in the 1980s, but I am completely satisfied that no wall existed when Ms. Sutherland and Mr. Chiappa assumed title to the Residential Property.
[35] Part of the evidence at trial surrounded a purported conversation between Elizabeth Twolan (Doucette) and Kamal Osman during the year 2004, shortly after the Applicants purchased the Commercial Property. Kamal Osman testified that “Ms. Doucette” approached him inside his Pizzeria to ask if the Doucettes could purchase a piece of land at the back of the Commercial Property. Mr. Osman did not wish to sell it. Mr. Osman testified that he told Ms. Doucette that he owned the portion of the shed located on the Commercial Property and he testified that she acknowledged that fact. He testified that Ms. Doucette advised him that they were using a portion of the shed for her husband’s workshop to help the family and that he agreed that they could use the rear portion of the shed, until he needed it himself. He stated that he acknowledged that the portion of the roof of his building overhung the Residential Property and he offered to cut it off, but Ms. Doucette declined the offer and she then left the Pizzeria.
[36] John Smith testified that he was present when this conversation took place and that he heard Ms. Doucette asking Mr. Osman about purchasing a piece of land at the back of the Commercial Property and that Mr. Osman refused and confirmed that he owned the rear portion of the shed. He also remembered a discussion related to a portion of the roof from the metal clad building on the Commercial Property.
[37] A third witness, Khaled Abou-Arab, a chef at the Pizzeria, testified that he witnessed Ms. Doucette in conversation with Kamal Osman and when John Smith was present.
[38] In her evidence, Ms. Twolan (Doucette) acknowledged that she had discussed with Mr. Osman the topic of purchasing a portion of land in order to make her own backyard larger, but that he was not interested in selling. She denied that there was any discussion with respect to the ownership of the large shed. She never used the name “Doucette”, except on the title deed. She denied that there was ever a dividing wall between the front and rear portions of the shed. She testified that there was no access to the large shed from the Commercial side of the building. She testified that anyone using the shed would have had to enter from the Residential Property side. She recollected asking Mr. DePencier, when purchasing goods to upgrade the shed, for permission to be on his property in order to complete the renovations. She wished to purchase additional land and he did not wish to sell at that time. She testified that she wanted a further 30 feet of land to increase the size of her backyard. She asked Mr. DePencier a number of times, and his answer was always no.
[39] She testified that there was never any discussion about the rear portion of the shed and that Mr. DePencier never asked for access to the building.
[40] Her only recollection of the purported 2004 discussion in the Pizzeria was that she once had spoken to a man in the pizza shop indicating that she was interested in buying more land and that the person said she would have to speak to his brother, and did not pursue the matter.
[41] She denied that Mr. Osman ever told her that he owned one half of the shed and that there was any discussion about using it for the benefit of their family. She insisted that she and her husband had never acknowledged that the Applicants owned the rear portion of the shed.
[42] She acknowledged that the property line went through the shed but testified that she understood that she owned the entire shed although she did not have paper title, as her lawyer assured her that she had ownership through adverse possession. She testified that when they undertook the renovations, it would have been obvious to the Commercial owners that renovations were being carried out, particularly when the shed itself was raised in order to level it and subsequently pour a concrete floor.
[43] Robert Toole testified that he had a conversation with Kamal Osman in the year 2009 when Kamal Osman stated that he owned the rear half of the shed and that his friend John Smith could prove the fact. He confirmed that he and his wife wished to buy more property from the Osmans in order to make their rear lot larger but that he never acknowledged that Mr. Osman owned the land beneath the shed.
[44] With respect to the purported 2004 conversation, I am simply not convinced that the conversation occurred in the manner in which Kamal Osman and John Smith testified. It is more consistent that any conversations which might have occurred between Ms. Doucette and Mr. Osman in the year 2004 dealt with the Doucettes’ desire to acquire more property so that they could expand the size of their rear yard, and that Mr. Osman was not interested in selling. The evidence concerning the ownership and use of the shed is simply too unreliable and compromised by the passage of time. No notes were ever made, by anyone, concerning this critical conversation. On balance, the evidence is unconvincing.
[45] It is also clear that when the Respondent Ms. Heath purchased the Residential Property she made it known to Mr. Osman that she must own the entire shed otherwise she wasn’t interested in purchasing the Residential Property. She also agreed that when she first met with Mr. Osman, she asked him what his understanding of the shed was and he told her that he owned part of it and stated that he had never been inside it. Ms. Heath was satisfied to rely on her lawyer’s advice with respect to the declarations of possession that she in fact had title to the entire shed through adverse possession.
[46] It was Mr. Osman’s testimony that after the purchase of the residential property, Ms. Heath told him that she knew that he owned the rear portion of the shed but it no longer belonged to him because it had been added to the Residential Property by way of survey. This confirms Ms. Heath’s testimony that she believed she owned the property through adverse possession.
[47] The evidence establishes that Mr. Osman discussed the matter of the occupation of the shed by the Doucettes with his insurance company and testified that he had a conversation with Ms. Doucette with respect to a potential liability for the occupation of the rear half of the shed on the Commercial Property. In her evidence, Ms. Twolan recalled having a conversation with someone at the Pizzeria about purchasing more land and that the person talked to her about signing documents about liability or insurance if someone were injured.
[48] It is obvious that the memories of both witnesses relating to this discussion are fuzzy, but it seems clear that Mr. Osman’s only concern was liability possibly accruing to him arising from the use of the shed in the event of loss or injury. It is clear that Mr. Osman thought he owned the rear half of the shed. It is also clear that Ms. Doucette believed that she owned the rear half of the shed. It would appear the discussion of insurance was never pursued nor resolved.
The Law
[49] The cases on adverse possession are legion and each case turns on its own set of particular facts. In Ontario, adverse possession claims are governed by sections 4, 13, and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, which establishes a ten-year limitation period in which a dispossessed owner must bring an action to recover possession once a right to possession has accrued. By section 15, when a person has not attempted to recover the land within ten years after the right to bring an action or make entry or distress accrued, the right and title of the owner of the land is extinguished. A person claiming a possessory title as against the legal owner must establish the following:
- Actual possession for the statutory period;
- That such possession was with the intention of excluding the true owner; and
- That the true owner’s possession was effectively excluded for the statutory period: Pflug v. Collins, [1952] O.R. 519 (Ont. H.C.); Marotta v. Creative Investments Ltd. (2008), 69 R.P.R. (4th) 44 (Ont. S.C.); Keefer v. Arillotta (1976), 13 O.R. (2d) 680 (C.A.).
[50] The claimant must meet each of these three criteria and time will begin to run against the owner from the last date when all three are satisfied: Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.).
[51] Marotta is a particularly helpful decision; it sets out in detail the applicable law, and I shall briefly follow the analysis employed in that decision.
Actual possession
[52] The claimant must establish actual possession for the ten-year period and the acts of possession must be open, notorious, constant, continuous, adverse and exclusive of the right of the true owner. In Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), at paras. 14, 16, Laskin J.A. explained the requirement of open and notorious possession in these words:
First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period had begun to run. Because the doctrine of adverse possession is based on the true owner’s failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner….
The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then the possession is not adverse.
[53] It is clear from the evidence in this case that there has been actual possession of the large shed by the Respondents and their predecessors in title at least since the year 1990, and permission was never an issue. It was never sought. The claimants and their predecessors in title never acknowledged the right of possession of the true owner.
Possession with the intention of excluding the true owner
[54] There must exist what is referred to as animus possidendi, meaning the claimant must have the intention to exclude the true owner. The threshold is high in the case of a trespasser and lower in a case where the occupier and true owner are mistaken as to the ownership of the land. The use by the claimant must be inconsistent with the use of the true owner. The animus possidendi which a person claiming a possessory title must have is the intention to exclude the owner from such use as the owner wants to make of the property. In Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563, Blair J.A., speaking for the Court of Appeal, described the “inconsistent use” test as one where the possession effectively excludes the true owner and the entitled use which the true owner intended for the disputed land.
[55] The difficulty in this case is that there is no evidence whatsoever as to the use intended by the Applicants. Historically, the use to which the large shed had been put was for storage during the period a commercial enterprise was being carried out on the land. That use, the evidence suggests, ended entirely when the business was moved to another location in the Town of Kemptville in 1995. Thereafter, the large shed was effectively abandoned by the true owner.
[56] In addition, the evidence established that, at its very highest, the large shed might have been used for the storage of insulation on the second flood of the shed, with access by ladder from the Commercial side of the property. The evidence of Ms. Sutherland establishes that following the year 1990, the large shed was never used by the Commercial owners. In this case, there is no “inconsistent use”, there is only one use, and that is the use of the entire shed by the Respondents and their predecessors in title. No use has been asserted or established by the Applicants, other than the wish to possess the disputed land, unlike in the case of Masidon, in which the true owner was holding the land in dispute with the intention of future commercial development.
[57] Further, the “inconsistent use” test does not apply to cases of honest unilateral mistake: Cunningham v. Zebarth Estate (1998), 71 O.T.C. 317 (Ont. Gen. Div.). The “inconsistent use” test does not apply in circumstances in which the person in possession operates under the honestly held belief that he or she is the rightful owner of the property or in cases where the legal owner and person in possession operate under a mutual mistake as to title or boundaries. In such cases, an inference may be drawn that the occupier is in possession of the land with the intention of excluding all others including the legal owners.
[58] In this case I hold that there is no “inconsistent use”, because there was no use intended for the property by the true owner. It had effectively been abandoned. However, if I am wrong in that conclusion, I would find that there was an honest unilateral mistake on the part of the Respondents and their predecessors in title, and that they at all times believed themselves to be the rightful owners of the large shed, notwithstanding the property line.
Actual exclusion of the true owners
[59] The final part of the test for possessory title requires that the true owner be excluded from possession. In analyzing this subject, the conduct of the owners in relation to the land is considered.
[60] As I have stated, the true owners had effectively abandoned the large shed certainly when the business was moved to another location in Kemptville, and probably during the 1980s. When the Doucettes acquired the Residential Property they closed off all entrances to the large shed on the side of the Commercial Property. It was effectively sealed off from access by the true owner. The sealing off was accomplished openly and notoriously. The entire building was raised and leveled, concrete was poured, and work was carried out on the exterior. Photos show Mr. Doucette on a ladder performing renovations to the exterior of the large shed. The true owners had been excluded from the large shed since at least 1990.
Conclusion
[61] In my opinion, the Respondents and their predecessors in title have established that they have acquired the rear portion of the large shed through adverse possession and have satisfied all the requisite criteria to establish their claim. Specifically, they have been in actual possession at least since the year 1990. The true owners have been excluded. The possession has been carried out with the intention of excluding the true owners. The use has been inconsistent or if not, the claimants have acted on the basis of an honest, unilateral mistake. Finally, the true owners have been fully excluded from the large shed since at least the year 1990.
[62] Given these findings, the purported conversation in the year 2004 is irrelevant, because the Respondents and their predecessors in title had acquired ownership of the rear portion of the shed by the year 2000. Nonetheless, in the event the conversation has any significance, it cannot be relied upon because of its inherent frailties.
[63] In the circumstances, a declaration will issue that the Respondents are the owners of Part 1 on Plan 15R-10725.
[64] The evidence at trial has also established that the overhanging roof of the Commercial shed has existed openly, notoriously, actually and consistently from the time the Residential Property was created by Mr. DePencier. In my view, all criteria for a claim of adverse possession of the overhanging roof have been satisfied.
[65] A Declaration will issue that the Applicants are the owners of Part 3 on Plan 15R-10725.
[66] In the event the parties are unable to agree on the issue of costs, I shall entertain brief written submissions within 45 days upon a schedule agreed to by counsel.
Mr. Justice Colin McKinnon
Released: July 26, 2016